The Canadian Charter of Rights and Freedoms: 40+ Years after the Trudeau Era

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Andrew R. Vaz
June 7, 2024

The enduring legacy of Canadian multiculturalism and national identity is enshrined in the patriation of the Canadian Constitution and the Charter of Rights and Freedoms of 1982. On that fateful day in April, former Prime Minister of Canada, Pierre Elliot Trudeau, met with the former British monarch, the late Queen Elizabeth the Second, and patriated the Canadian Constitution. This allowed Canada to achieve full sovereignty with its ratified Constitution and Charter of Rights and Freedoms. This Charter guaranteed certain political rights to Canadian citizens and the civil rights of everyone in Canada based on the policies and actions of all Canadian governments. It is designed to unify Canadians around a set of principles that embody those rights. 40+ years later, we must address if this Charter did what it set out to do.

Patriation of the Canadian Constitution

We must remember that Canada was a former British colony, where the British government and monarch had complete dominion over the rights and freedoms of the citizenry. Canada did achieve independence (although limited) on July 1, 1867, the early summer day referred to as Canada Day. However, the Constitution retained British rule under the British North America Act of 1867. The British controlled Canada’s legislative and foreign policy agendas, but this would all change in the latter half of the 20th Century. The election of a charismatic and transformational leader ensured this change; that leader’s name was Pierre Elliot Trudeau (1919-2000).

In 1982, then-Prime Minister Pierre Trudeau and the Canadian government patriated the Constitution, which transferred said constitution from the authority of the British Parliament to Canada’s federal and provincial legislatures. The Constitution was also updated with a new amending formula and a Charter of Rights and Freedoms. These changes occurred after a fierce, 18-month political and legal struggle that dominated headlines and the agendas of every government in the country.

This act gave Canada full governance since its founding in 1867 and ensured the preservation of its national identity separate from the British Empire.

Pierre Trudeau and the ‘Just Society’

The Charter was signed on April 17, 1982. When it was signed into law, it was meant to be the then-Prime Minster of Canada, Pierre Trudeau’s accomplishment of Canada becoming a ‘just society.’ Trudeau had seen the devastation brought by the Second World War and believed that a written guarantee of basic civil liberties, democratic rights and legal rights could prevent the oppression of individuals by an intrusive state.  However, a ‘just society’ must confront the uncomfortable truths of its past. This includes mistreating First Nations communities, including the Inuit and Metis populations. Canada was then, and still is, a divided society.

Trudeau’s optimism for an open Canadian culture free from discrimination was ideal but unrealistic. The ‘Just Society’ fell victim to a variety of factors, notably the realities of governing, which require a bureaucratic and pragmatic approach rather than a romantic one, opposition from significant segments of the Canadian public, and the difficulty inherent in the political system of implementing idealistic reforms within a four-year election cycle.

It should be noted that the political discourse around the ‘just society’ disappeared after the early 1970s—it can be assumed that Trudeau abandoned this idea altogether. Thus, Trudeau’s promise to make Canada a ‘just society’ never came to fruition.

The ‘Notwithstanding’ Clause

The notwithstanding clause allows Parliament and provincial legislatures to operate, notwithstanding a court ruling declaring legislation to violate the Charter. This is located in Section 33 of the Charter. This clause allows Parliament to override certain portions of the Charter for five-year terms when passing legislation. Now, the clause has never been used by the federal government. However, Ontario and Quebec’s provincial governments have used it in their provinces in the 21st Century.

The argument against the notwithstanding clause is straightforward: what good is a Charter of Rights that includes a provision allowing governments to simply ignore the rights included in it? Does this not subvert the entire rationale for elevating rights to constitutional status in the first place? Trudeau thought the clause could undermine the Charter by letting legislatures ride roughshod over rights.

From the vantage point of modern-day legal eyes, Canada needed a constitutionally entrenched charter of rights in an increasingly complex world to protect individuals and groups from the state and others. Even if the notwithstanding clause was repealed, Canadians’ rights are not absolute. They are subject to reasonable limits. All rights listed in the charter are moderated by what is acceptable in a free and democratic society. There is no right to free speech, association, media or anything else.

Conclusion

This article also comes as Canada celebrates this month’s 42nd anniversary of the Charter of Rights and Freedoms. Sadly, Pierre Trudeau could not be around to see how this legislation holds up in 21st-century Canada. Pierre Trudeau passed away from prostate cancer in September 2000. His eldest son, Justin Trudeau, is Canada’s Prime Minister, making the Trudeau family a true Canadian political dynasty.

Whereas the Constitution has not generally changed Canadian society—I believe it has made things a lot better than they were pre-1982. Canada may still be a long way away from a comprehensive and even-handed society, but the Constitution and the Charter of Rights and Freedoms have moved the country in the right direction.

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Author: Andrew R. Vaz, Ph.D. is a graduate of the Ph.D. in Public Policy and Administration program at Walden University, specializing in Public Management and Leadership. He was already awarded a Master of Philosophy (MPhil) degree in the program. He is also a graduate of the Master of Science in Criminal Justice (MSCJ) and Master of Public Administration (MPA) double master’s program at Florida International University. He can be reached at [email protected]. 

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